Disciplinary Action against
Mark Breiner, D.D.S. (2001)

Stephen Barrett, M.D.

In 1998, the Connecticut Department of Public Health initiated a disciplinary action against Mark Breiner, D.D.S. in response to his conduct and professional advice about removal of amalgam dental fillings and teeth that have undergone root canal treatment. Breiner sought an injunction to stop proceedings, claiming that defending himself would be futile because the two dentist members of the three-member administrative panel that was to hear the complaint were unduly biased against him. He claimed that they were biased because, as members of the American Dental Association (ADA), they would consider themselves bound to follow an ADA advisory opinion that opposed the removal of otherwise healthy fillings simply because they contained mercury. The ADA guidelines called such a dental practice improper and unethical. The local court ruled against him and was upheld by the Connecticut Court of Appeals.

In 2001, as shown below, Breiner and the Department entered into a consent order under which he was assessed $5,000 and placed on probation for five years, during which his practice would be monitored and he was not permitted to:

Remove amalgam fillings that do not require replacement due to failure, decay, placement of a crown or other prosthetic restoration on a tooth

Remove root canal-treated teeth cannot be corrected by standard measures without first providing the patient with the names and phone numbers of two medical professionals approved by the Department with whom the patient could consult about the traditional medical view of the proposed treatment

He was also barred from removing amalgam fillings or root-canal treated teeth without having patients review and sign a form (Attachment A, below) which stated that
the Department and the Connecticut State Dental Commission have concluded that there was insufficient scientific evidence that removing amalgam fillings or root canal-treated cures and/or alleviates the symptoms of any disease or condition and that there was insufficient scientific evidence to support the use of a number of tests that Breiner performed, including electrodermal screening, materials reactivity, blood tests, and electrical current testing.

In 2005, in response to a first-amendment complaint Breiner filed in federal court, the 2001 consent order was modified to permit Breiner to criticize amalgams in advertising provided he included the following statement:

Dr. Breiner's opinions about amalgam fillings are not shared by traditional dentists and physicians, the Connecticut Department of Public Health, the Connecticut State Dental Commission or the American Dental Association, all of whom have concluded that there is insufficient scientific evidence to establish that the removal of amalgam fillings cures and/or alleviates the symptoms of any disease or condition. The Connecticut Department of Public Health and the Connecticut State Dental Commission recommend consultation with a traditional dentist or physician before beginning any such treatment.

STATE OF CONNECTICUT
DEPARTMENT OF PUBLIC HEALTH
BUREAU OF REGULATORY SERVICES

In re: Mark Breiner. D.D.S.
Petition No. 940929-002-123

CONSENT ORDER

WHEREAS, Mark Breiner, D.D.S. of Orange. Connecticut (hereinafter "respondent") has been issued license number 004359 to practice dentistry by the Department of Public Health (hereinafter "the Department") pursuant to Chapter 379 of the General Statutes of Connecticut, as amended;

WHEREAS, the Department believes that there is insufficient scientific evidence establishing that the removal of amalgam fillings or teeth that have undergone root canal treatment alleviates and/or cures the symptoms of any disease or condition;

WHEREAS, the Department believes that there is insufficient scientific evidence to support the use of a number of tests that respondent performs, including electro dermal screening, materials reactivity, blood tests and electrical current testing;

WHEREAS, the Department alleges that respondent failed to properly and adequately inform, advise and treat the patients referenced in the Second Amended Statement of Charges dated June 8, 1999, in the manner required by the standard of care for a dentist licensed in the State of Connecticut.

WHEREAS, respondent, in consideration of this Consent Order, has chosen not to contest the above allegations of wrongdoing but, while admitting no guilt or wrongdoing, agrees that for purposes of this or any future proceedings before the Connecticut State Dental Commission (hereinafter "the Commission"), the terms and conditions of this Consent Order as stated in paragraphs 1 through 24 shall have the same effect as if ordered after a full hearing held pursuant to §§19a-9, and 19a-14, and §20-114a of the General Statutes of Connecticut; and

WHEREAS, the Department, in consideration of this Consent Order, agrees not to bring charges against respondent for any complaint currently pending or known to the Department pertaining to patients treated prior to the effective date of this Consent Order.

NOW THEREFORE, pursuant to §19a-17 and §20-114 of the General Statutes of Connecticut, as amended, respondent hereby stipulates and agrees to the following:

1. He waives his right to a hearing on the merits of this matter.

2. That he shall comply with all state and federal statutes and regulations applicable to his licensure.

3. He understands that this Consent Order is a matter of public record.

4. Respondent shall pay a civil penalty of five thousand dollars ($5,000.00) payable by certified check or money order to "Treasurer, State of Connecticut." Such penalty shall be payable on the day this Consent Order is presented to the Commission.

5. Respondent's license shall be placed on probation for a period of five years under the following terms and conditions:

(a.) Respondent shall obtain a monitor (hereinafter "monitor"), pre-approved by the Department, to be present for two removals of amalgam fillings and two tooth extractions performed by respondent on at least two different patients during the six months following entry of this Order. After observing two of each such procedures, the monitor shall, within thirty days, report to the Department that he or she has personally observed two of each such procedures, and that such procedures were performed with reasonable skill and safety.

(b.) Monitor

(1) Respondent shall obtain at his own expense, the services of a monitor pre­-approved by the Department, to conduct periodic random reviews of thirty of respondent's active patient records. In the event that respondent has fewer than thirty patients, the monitor shall review all of respondent's patient's records. In no event shall the number of patient records reviewed exceed thirty during any of such periodic random reviews.

(2) Respondent's monitor shall conduct such reviews and meet with him as follows: during years one and two, every other month; during years three and four, quarterly; and during year five, bi-annually.

(3) the monitor shall have the right to monitor respondent's practice by any other reasonable means which he or she deems appropriate. Respondent shall fully cooperate with the monitor in providing such monitoring.

(4) Respondent shall be responsible for providing written monitor reports directly to the Department every other, month for the first two years, every quarter for the third and fourth years and bi-annually for the fifth year. Such monitor's reports shall include documentation of dates and duration of meetings with respondent. number and a general description of the patient records and patient medication orders and prescriptions reviewed, additional monitoring techniques utilized, and a statement that respondent is practicing with reasonable skill and safety. The monitor shall immediately notify the Department in writing if he or she believes respondent's continued practice poses a danger to the public.

6. Respondent shall, at all times that he is licensed to practice dentistry in the State of Connecticut comply with the following terms and conditions:

(a.) Disclosure Statement

Respondent shall not remove amalgam fillings or teeth that have undergone root canal treatment without first providing each such patient with a copy of the form attached hereto marked Attachment "A," and obtaining the patient's signature acknowledging receipt of such form, A copy of the executed form shall be maintained in the patient's record.

(1) Respondent shall not advise any patient or person that the removal of amalgam fillings will cure or alleviate any medical disease or condition and/or cure the symptoms of any medical disease or condition.

(2) Respondent shall not advise any patient or person that the removal of teeth. that have undergone root canal treatment will cure or alleviate any medical disease or condition and/or cure the symptoms of any medical disease or condition.

7. At all times that he is licensed to practice dentistry in the State of Connecticut respondent shall not remove amalgam fillings that do not require replacement due to failure, decay, placement of a crown or other prosthetic restoration on a tooth, and shall not remove teeth that have undergone root canal treatment that cannot be corrected by treatment of the root canal itself, retrograde filling or surgical apioectomy, or in which the root canal is fractured, without first providing the patient with the names and telephone numbers of two medical professionals approved by the Department with whom the patient may consult as to the traditional medical position on the planned treatment. The Department shall provide respondent with a list of approved medical professionals on the day this Consent Order is presented to the Commission, which names, and telephone numbers shall be included on the Disclosure Statement.

9. All reports required by the terms of this Consent Order shall be due according to a schedule to be established by the Department of Public Health.

10. Respondent shall comply with all state and federal statutes and regulations applicable to his licensure.

11. Respondent shall pay all costs necessary to comply with this Consent Order.

12. Respondent shall maintain a Disclosure Statement file and the Department shall be allowed access to respondent's "Disclosure Statement" file two times a year on reasonable notice for the sole purpose of determining whether signed copies of Attachment "A" have been obtained for each new patient.

13. Any alleged violation of any provision of this Consent Order, may result in the following procedures at the discretion of the Department:

(a) The Department shall notify respondent in writing by certified U.S. mail that the term(s) of this Consent Order have been allegedly violated, provided that no prior written consent for deviation from said term(s) has been granted.

(b) Said notification shall include the acts or omission(s) which allegedly violate the term(s) of this Consent Order.

(c) Respondent shall be allowed fifteen (15) days from the date of the mailing of notification required in paragraph (a) above to demonstrate to the satisfaction of the Department that he bas complied with the terms of this Consent Order Of, in the alternative, that he has cured the violation in question.

(d) If respondent does not demonstrate compliance or cure the violation by the limited thirty (30) day date certain contained in the notification of violation to the satisfaction of the Department, he shall be entitled to a hearing before the Commission which shall make a final determination of the disciplinary action to be taken.

(e) Evidence presented to the Commission by either the Department or respondent in any such bearing shall be limited to the alleged violation(s) of the term(s) of this Consent Order.

14. That, in the event respondent fails to act in accordance with subsection 13(c) above, or to request a hearing as provided in 13(d) above, respondent agrees immediately to refrain from practicing as a dentist, upon request by the Department, with notice to the Commission, for a period not to exceed 45 days. During that time period, respondent further agrees to cooperate with the Department in its investigation of the violation. Respondent further agrees that failure to cooperate with the Department in its investigation during said 45 day period shall constitute grounds for the Department to seek a summary suspension of respondent's license. In any such summary action, respondent stipulates that his failure to cooperate with the Department's investigation shall constitute an admission that his conduct constitutes a clear and immediate danger as required pursuant to the General Statutes of Connecticut sections 4-182(c) and 19a-17(c).

15. That, in the event respondent violates any term of this Consent Order, said violation may also constitute grounds for the Department to seek a summary suspension of his license before 1hc Commission.

16. That legal notice shall be sufficient if sent to respondent's last known address of record reported to the Licensure and Registration Section of the Division of Health Systems Regulation of the Department.

17. That, this Consent Order is effective on the first day of the month immediately following the date this Consent Order is accepted and ordered by the Commission.

18. That the Department' s allegations as so-labeled in this Consent Order shall be deemed true in my proceeding before the Commission in which his compliance with this Consent Order is at issue. In any subsequent proceeding before the Commission in which his compliance with §20-114 of the General Statutes of Connecticut, as amended, is at issue, this Consent Order shall be admitted as a Department exhibit and without objection by respondent. for consideration by the Commission solely in determining what disciplinary action, if any, should be imposed in such proceeding. Respondent shall have the right to make any arguments he deems appropriate regarding the weight, if any, to be given by the Commission to this prior Consent Order.

19. That, any extension of time or grace period for reporting granted by the Department shall not be a waiver or preclude the Department from taking action at a later time. The Department shall not be required to grant future extensions of time or grace periods.

20. That, this Consent Order and terms set forth herein are not subject to reconsideration, collateral attack or judicial review under any form or in any forum. Further, this Order is not subject to appeal or review under the provisions of Chapters 54 or 368a of the General Statutes of Connecticut, provided that this stipulation shall not deprive respondent of any rights that he may have under the laws of the State of Connecticut or of the United States.

21. That, this Consent Order is a revocable offer of settlement which may be modified by mutual agreement or withdrawn by the Department at any time prior to its being executed by the last signatory.

22. That, respondent permits a representative of the Legal Office of the Bureau of Regulatory Services to present this Consent Order and the factual basis for this Consent Order to the Commission. Respondent understands that the Commission has complete and final discretion as to whether this executed Consent Order is approved or accepted.

23. That, respondent understands and agrees that he is responsible for satisfying all of the terms of this Consent Order during vacations and other periods in which he is away from his office and/or residence.

24. That, respondent has the right to consult with an attorney prior to signing this document.

I, Mark Bremer, D.D.S., have read the above Consent Order, and I stipulate and agree to the terms as set forth therein. I further declare the execution of this Consent Order to be my free act and deed.

______________________
Mark Breiner, D.D.S.

Subscribed and sworn to before me this 8th day of November, 2001.

________________________________
Notary Public or person authorized
by law to administer an oath or affirmation

The above Consent Order has been presented to the duly appointed agent of the Commissioner of the Department of Public Health on the 27th day of November 2001, it is hereby accepted.

I understand that traditional dentists and physicians, the Department of Public Health, and the Connecticut State Dental Commission have concluded that: there is insufficient scientific evidence establishing that the removal of amalgam fillings cures and/or alleviates the symptoms of any disease or condition; there is insufficient scientific evidence establishing that the removal of teeth that have undergone root canal treatment cures and/or alleviates the symptoms of any disease or condition; and there is insufficient scientific evidence to support the use of a number of tests that Dr. Breiner performs, including electro dermal screening, materials reactivity, blood tests and electrical current testing.

I further understand that the Department of Public Health and the Connecticut State Dental Commission recommend that I consult with a traditional dentist or physician before I begin such treatment. A list of medical professionals approved by the Department is attached.

I have not been advised by Dr. Breiner that the removal of amalgam fillings or removal of teeth that have undergone root canal treatment cures and/or alleviates the symptoms of any disease or condition.

I attest that I have read this statement and have received a copy.

___________________________
Patient's Signature

_____________________
Date

___________________________
Patient's Name Printed or Typed

Pursuant to a Consent Order issued 'by the Connecticut State Dental Commission in ______________, 2001, Dr. Breiner is required to provide each of his patients with a copy of this statement. Each patient is required to sign this statement to indicate that he or she has been provided with a copy of it. The original signed statement shall remain in each patient's records. If a patient has any questions regarding the Consent Order, he or she may contact the Department of Public Health at (860) 509-7600.